For police and prosecutors, strangulation law is newest weapon against domestic violence

When Allentown police officers arrived one Sunday morning at the row home on Tilghman Street, they found a woman wheezing, struggling to breathe.

In court documents filed March 19, officers said they noticed swelling and redness around her neck.

The 29-year-old woman told an officer that her boyfriend, Robert Gomez, came home drunk, got into an argument with her and then punched her in the face several times, the arrest affidavit says.

When she fought to get away, Gomez put his hands around her throat and squeezed and "she felt her airway close up and she wasn't able to breathe," according to police.

Able to pull her attacker's hair hard enough to force him to let go, she yelled for her mother to call police, who quickly arrived, the court documents say. Police charged Gomez with the state's newest weapon against domestic violence: a felony count of strangulation.

Act 111, signed into law in October, Domestic Violence Awareness Month, took effect at the end of 2016 and made Pennsylvania the 36th state with a standalone charge for nonfatal strangulation. In the first three months since it took effect, police in Lehigh and Northampton counties each used the strangulation charge about a dozen times.

Before the law's passage, a person accused of trying to strangle someone would have been charged with either simple assault, which carries a lighter sentence, or aggravated assault, which required prosecutors to prove the attack caused serious bodily injury.

The new law does not require that level of proof, which sometimes was difficult to show, said Northampton County Assistant District Attorney Erika Farkas, who heads the domestic violence unit.

"For us, it is great to not have to show physical injury," Farkas said. "You don't have to show bruising on the neck or any internal injury."

Instead, Farkas said, prosecutors now just need to prove that a defendant choked someone with the intention of impeding his or her breathing. Farkas said that makes sense to her, since there's little reason other than assault for people to put their hands around the throats of others.

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An attacker convicted of felony strangulation could serve up to eight years more than he or she would have under a previous charge of simple assault.

Whether juries will convict under the new law remains to be seen.

Attorney Eric Dowdle will be defending one of the Lehigh County strangulation cases. He said he views it almost like any other domestic violence defense, using cross-examinations to question a witness' credibility and reviewing injury information and medical testimony to determine the harm done to the victim.

"There's no case law on it yet," he said. "It's a new area of the law, but in essence, what it is, it's an aggravated assault, causing or attempting to cause serious bodily injury.

"I don't know why we needed another law that we already have in the books," Dowdle said.

'A consistent red flag'

Those involved in writing Act 111 said it started taking shape in late 2015 when Chester County officials researched domestic assaults in which victims had been choked by their attackers. The research found some chokers moved along a criminal path to more serious violence, including murder.

Chester County District Attorney Tom Hogan, who helped build the law, said if choking is part of a pattern of abuse, "it is much more likely to accelerate to a homicide or a very extreme case of domestic abuse."

"It is a consistent red flag that this is one that will end in tragedy," Hogan said.

State Rep. Becky Corbin, R-Chester, who introduced the bill in 2015, said the law seeks to curb one of the more deadly forms of domestic violence. In a memo to the House of Representatives, she wrote, "Strangulation is serious. Loss of consciousness can occur within five to 10 seconds and death within four to five minutes."

The bill easily passed in the House and Senate last year. Gov. Tom Wolf signed it in October.

Before introducing the bill, Corbin said she met with Hogan and other county prosecutors to see what more could be done in domestic violence cases when an assailant chokes the victim. They reviewed domestic violence cases involving choking and found some offenders got little to no jail time after being charged with low-level misdemeanors because the victims had no visible injury.

Corbin said Chester County police departments, in collaboration with social service providers, participated in an assessment that found that victims of choking had a higher chance of being homicide victims.

The 11-question assessment helps predict future domestic violence and provide the right type of support for victims, such as restraining orders, counseling and emergency housing, she said.

The questions include asking domestic violence victims about their attacker's alcohol and drug abuse, if there is a weapon in the house and a history of violence. Also, Corbin said: "Have you ever been choked?"

Hogan said the county began using the program following a 2012 stabbing death of a woman by her estranged husband outside the convenience store where she worked. An assessment would have found several indicators of increasing domestic violence.

Lehigh County Chief Deputy District Attorney Tonya Tharp, who specializes in domestic violence cases, said the change to the law is fitting.

The law defines strangulation as knowingly obstructing a person's breathing or blood circulation by blocking their nose and mouth or applying pressure to their throat or neck.

"Strangulation is in your face," Tharp said. "It's I got my hands on you and I am controlling whether you breathe or not. That's why it's so severe."

The jury is still out

Farkas, the chief of domestic abuse prosecutions in Northampton County, said her office asked police departments just after Christmas to look for cases in which the new statute could apply. She said the county has more than a dozen pending strangulation cases.

In cases where evidence of physical injury is lacking, it remains an open question whether juries will convict under the strangulation charge, Farkas said. That will only be answered once some of the new cases go to trial.

On March 9, Dowdle was scheduled to defend a man charged with strangulation in a Lehigh County district court, but the alleged victim never showed. The hearing was postponed until April 20.

Dowdle's client, Daniel W. Lopez, was one of two men charged with strangulation in domestic violence cases in Allentown the weekend before Valentine's Day. On Feb. 12, Lopez went to his ex-girlfriend's south Allentown home, barged in as she was taking a shower, put his hands around her neck and squeezed, making it difficult for her to breathe, according to court records.

John Waldron, an Allentown defense attorney who has a strangulation case in Centre County, said, "The word itself really escalates things."

"It really catches your attention, you can imagine when a magistrate or a judge sees it," he said. "Most of the time you see strangulation, it is in a homicide and there is a death involved. It is a quite serious use of a term."

Waldron said his case does not involve domestic abuse. He said his client was coming to the aid of a friend during an off-campus fight at Penn State University and placed someone in a chokehold. His client was originally charged with simple assault, but the charge was later upgraded to a first-degree misdemeanor count of strangulation. The case is ongoing.

He's concerned the strangulation law may be overused in domestic violence cases because it does not require victims to have any physical injury.

"I just hope that it's not going to be a catch-all charge in each and every case where someone's neck is touched," he said. "I hope there is discretion when it's charged. It is really a severe charge."

While the law is still in its infancy in Pennsylvania, New York passed a similar one in late 2010 that quickly led to arrests.

Within the first 15 weeks of the passage of New York's law, more than 2,000 people across the state were charged with one of three strangulation statutes — either a misdemeanor, a Class D felony or a Class C felony that carries a sentence of at least 10 years in prison — according to the New York State Division of Criminal Justice Services.

In the first year, more than 1,000 people were charged with felony strangulation in New York City, but only 20 went to trial and none were convicted, according to a 2013 New York Times story.

However, lack of a conviction doesn't mean the law didn't work, said Chitra Raghavan, a professor of psychology at the John Jay College Of Criminal Justice in New York City.

"When there is no injury, it becomes a he said, she said," Raghavan said. "You need to make a compelling case and sometimes it's hard to make that case. Sometimes the defense lawyer is just better, sometimes the prosecutor is busy with other things and sometimes the victim, she's got what she wanted, which is out of the abusive relationship."

Trials can be long and painful to go through for a woman, Raghavan said, and even tougher if children are involved. In an abusive relationship, especially one involving the terror of being choked, a woman may just be satisfied that police got her abuser away from her, she said.

"It's hard to say the law is or isn't helping," said Raghavan, whose research focuses on intimate partner violence. "From a psychological perspective, I think the law is really crucial and important."

Not only does a strangulation law provide harsher sentencing guidelines, but it also it raises awareness to the seriousness of the offense, she said, which can lead to more police, medical and social services personnel spotting warning signs and providing help for victims.

"Cutting off someone's breathing is one step away from death," she said. "It's associated with the highest level of threats and fear. It's serious business, it's not simple assault."

SUMMARY

Background: Passed into law in late October, Act 111 makes nonfatal strangulation a standalone criminal offense in Pennsylvania.

The law: The law defines strangulation as knowingly obstructing a person's breathing or blood circulation by blocking their nose and mouth or applying pressure to their throat or neck.

What changes: The offense is a second-degree felony if the attacker is related to or a caretaker of the victim, or if they commit the crime during a sexual assault; a first-degree felony if there is an active restraining order at the time of the attack, if the offender uses a weapon or if the offender has been convicted of felony strangulation in the past; or a misdemeanor if the attacker has no relationship to their victim.